International Journal of Law and Interdisciplinary Research

Justifiability of Cannibalism

The Merriam-Webster dictionary defines ‘cannibalism’ as ”the eating of the flesh of an animal by another animal of the same kind”. Cannibalism can therefore be understood to be an ‘intra-specific’ predation. However, in the common world, when one utters the word cannibalism, it is often understood to be the consumption of human flesh by another human. It is considered to be a taboo and therefore, many hesitate to talk about it.

The practice of eating human flesh dates back to thousands of years. Many claim that de-fleshing human beings go back to 600,000 years. Even today, forms of cannibalism are said to be prevalent among the various tribes found in islands of Papua New Guinea, the Solomon Islands and Fiji.[1]Physical evidence of cannibalism is said to have been found in the colonised Jamestown colony in 1609. Many instances of cannibalism were also found in the period of World War II. It was of such gravity that the Leningrad police has to combat cannibalism.

Cannibalism is often found to be ritualistic. It is seen as a practice among most tribal communities whose practices are primitive. An Italian photographer, Cristiano Ostinelli carried out a study of the Aghori monks of India. They are the ascetic Shaiva sadhus in India who are found mostly in the ghats of Varanasi. Their practice of cannibalism is ritualistic. However, there are cases in modern day China that show that the dead foetus or a miscarried baby is consumed. Organ transplant is also seen by many as a ‘noble form of cannibalism’. Studies carried out by some people have demonstrated the behaviour of both cannibal and victim also influences the intensity of cannibalism.

Cannibalism is believed to be not justified in any way. It goes against the natural rights of life and liberty of a person. It is seen to be violating the norms of humanity. In the R vs. Dudley and Stephens case, a leading English criminal law case, which set a precedent for all subsequent cases of cannibalism in the world, necessity was rejected as a legitimate defence for cannibalistic practices. But, cannibalism is morally wrong if seen as a murder. There are a few thinkers according to whom, consumption of human flesh after the death of the cannibalised cannot be wrong as no moral norms apply to the dead. If such cases are seen to be justified merely on the grounds of the cannibalised being dead, then one might also think that the cases of ‘necrophilia’ are also justified.

Therefore, there are many arguments that speak for or against the notions of cannibalism based on the grounds of morality or cultural relativism. The researcher intends to study such arguments that justify cannibalism and those that do not. Doing so, the researcher intends to arrive at a balanced conclusion as to why cannibalism is justified to a certain extent or in what ways does it defy laws of humanity. Many movies have also adopted the theme of cannibalism and have gone on to become controversial, especially the movies of the period from 1977-1981, the said period being called ‘cannibal boom’. The researcher would also include some such movies for e.g., Hannnibal, The Hills Have Eyes etc., and therefore analyse in what ways these practices have been portrayed and justified. At the end of this project work, the researcher intends to arrive at a conclusion regarding the taboo of cannibalism in a modern day society with the help of jurisprudential analysis.

“I ate his liver with some fava beans and a nice chianti”
― Thomas Harris, The Silence of the Lambs[2]

An enquiry into the cradle of cannibalism

The identification of cannibalism, or anthropophagy, in the archaeological record is difficult. Two of the most common forms of evidence generally regarded as being that of cannibalism, is unnatural scattering of human bones and the finding of them in a damaged condition. The term cannibalism has been derived from the Island of Carib, of the Lesser Antilles. The people of this island have acquired a long standing reputation as cannibals following the recordings of their legends in the 17th century. Cannibalism was widespread in the past among humans in many parts of the world, continuing into the 19th century in some isolated South Pacific cultures, and to the present day in parts of tropical Africa. Cannibalism was practiced in New Guinea and in parts of the Solomon Islands, and flesh markets existed in some parts of Melanasia. was once known as the ‘Cannibal Isles’. Cannibalism has been well documented around the world, from Fiji to the Amazon Basin to the Congo to Māori New Zealand. Neanderthals are believed to have practiced cannibalism, and Neanderthals may have been eaten by anatomically modern humans.[3]

“Researchers have also found physical evidence of cannibalism in ancient times. In 2001, archaeologists at the University of Bristol found evidence of Iron Age cannibalism in Gloucestershire. Cannibalism was practiced as recently as 2000 years ago in Great Britain”[4]. In Germany, Emil Carthaus and Dr. Bruno Bernhard have observed 1,891 signs of cannibalism in the caves at the Honne (1000 – 700 BC). Cannibalism has also been mentioned in the historic literature. It was reported during the siege of Jerusalem by Rome and that the population of Numantia during its siege by Rome again, saw itself being reduced to cannibalism and suicide.

For a brief time in Europe, an unusual form of cannibalism occurred when thousands of Egyptian mummies preserved in bitumen were ground up and sold as medicine. This practice then developed into a wide scale business. In China, during the Tang Dynasty, eating of the enemy’s heart and liver were seen to be an official symbol of revenge. European settlers and colonisers brought back stories of practices of human flesh-eating by the native people of the colonies. In Jamestown, Virginia physical evidence of cannibalism has been recorded. Many instances of cannibalism by necessity were also recorded during World War II. There are many instances of cannibalism in the present day too. These arise out of necessity, psychological disorders as well as criminal acts and war crimes. Journalist Neil Davis also reported cases of cannibalism in Cambodia.

Cannibalism – a reality or a myth

According to many scholars cannibalism as a practise does not actually exist. William Arens (1979,1998) has asserted that cannibalism in every society he studied was largely European myth-making based on expectations of how non-Europeans behave.[5]However, there are evidences that have been found by archaeologists in studies and excavations. Evidence of deliberate discard, cut marks, and bone breakage to extract marrow are criteria used to deduce that animal bones at archaeological sites were food refuse; these same criteria have been used to interpret isolated and scattered human bones at various prehistoric sites as evidence of cannibalism. However, there have been weak interpretations of these data.

There have been multiple reports of cannibalism – both as legends and as acts of crime. The R v. Dudley & Stephen[6], case is a true case of cannibalism. It is a leading English case which set the precedent that ‘necessity’ as a defence in the charge of murder would not be valid. In this case, Dudley and Stephens were shipwrecked along with two other men. When one of them, the cabin boy Richard Parker, fell in a coma, Dudley and Stephens decided to kill him for food. After a highly publicized trial they were convicted of murder and sentenced to death. Again, there have been reports that the self-declared emperor of Africa, Jean-Bedel Bokassa was tried for several cases of cannibalism. A UN Human Rights report of 2007 declared that sexual atrocities against women go beyond rape and are also cannibalised. The CNN news channel reported that human rights violations in South Sudan were on the rise and witnesses claim that they have seen people being forced to eat other humans.[7]

The Aghori tribe of India, mostly found in Varanasi, drink from skulls of humans and also eat the remains of a corpse. It is their belief that eating what others reject, would satisfy the Hindu God, Lord Shiva and Goddess Kali, thereby they would be on their path of salvation. Italian photographer Cristiano Ostinelli braved their cannibalistic ways and spent time with the tribe to try and discover more about their way of life.[8]

More recently, there have been cases reported where people have resorted to cannibalism for pleasure. In 2012, a Japanese man had his genitals removed and then seasoned them before cooking them for five paying dinner party guests. Mao Sugiyama, 22, who is asexual, had voluntarily undergone surgery to have them removed. However, the illustrator took his frozen penis and scrotum home from the hospital and organized a grim party. He charged guests around $250 per person to eat his severed genitalia in Tokyo, Japan.[9]This has been justified by the liberalists who believe that cannibalism is not wrong and unjustified if it has been done with the consent of the cannibalised or it has been a form of self-cannibalism. This, however, is an extreme form of liberalism and is not supported by many.

Can cannibalism be justified?

Cannibalism is the practice of eating the flesh of one’s own species. It can also mean the usually ritualistic eating f human flesh. It is often seen as an uncivilised act and is in most instances, attributed to the primitive societies. But, there are cases where it has been seen that members of the modern, ‘civilised’ society have practised cannibalism. For many, it is an act that cannot be defended or justified in any way. Some societies believe that cannibalism is a coping mechanism. It is believed to be a way of guiding the soul of the deceased. Many scholars have also defended cannibalism. There might be different ways of either defending or going against the practice of cannibalism.

From the perspective of the different schools of law

Natural Law and Natural Rights are closely related. Natural rights are sometimes considered to be in accordance with the law of nature. However it is seen to be very different from each other. A law of nature is about what will happen while a natural right is about what ought or ought not to happen. Natural law theorist says that there exists a duty not to take human life even in the absence of a positive law. In this context, cannibalism is supposed to be prohibited and cannot be justified as according to natural law it is impossible to change the laws of nature. Its main concern is with human actions and does not permit the human actors to engage in acts that deprive persons of their natural rights, which includes the right to life.[10] Under natural law, natural justice is that which is consistent with the natural order. St. Augustine stated two cardinal principles of natural law. They were: “give unto each person their proper due; and do nothing unto another he would not have done unto himself.”[11] Again, according to the Corpus Juris Canonici, “mankind is ruled by two laws: natural law and custom.”[12] But, according to it, if any law contradicts the natural law, it must be declared as null and void.

Customs are seen as sources of law. According to Salmond, “custom is the embodiment of those principles which have commended themselves to the national conscience as principles of justice and public utility”[13]According to Carter, “The simplest definition of custom is that it is the uniformity of conduct of all persons under like circumstances.”[14]The members of the primitive societies believe in certain traditional practices that involves cannibalistic approaches. They have customs that have been practiced since time immemorial. As Maine puts it, “The usages which a particular community is found to have adopted in its infancy and in its primitive seats are generally those which are on the whole best suited to promote its physical and moral well being… The customs are of course obeyed by multitudes who are incapable of understanding the true ground of their expediency, and who, are therefore left inevitably to invent superstitious reasons for their permanence.”[15] So, here the practices of the communities that practice cannibalism is justifiable. A study of the ancient societies show that laws were not made by the Kings but were based on the customs of the people. This was because the people were accustomed to living in a particular way and the Kings wanted to rule according to the popular notions of right and wrong. Customs have the binding force because of the existence of an established usage which is based on a rational expectation of the continuance in the future.[16]The observance of a custom may not always be just and reasonable. Keeping this in mind that customs, although unjust, might bring stability in the legal order, in New Zealand, the customs of the Maoris, which also involves cannibalistic rituals, have been recognised by the ‘Native Rights Act, 1856. However, this is void if one sides with Augustine whose stand was clear against unjust laws. He was of the view that “unjust laws are not laws at all.”[17]Also, according to Gratiani, a scholar monk from Bologna, if any law contradicts the natural law, it must be declared as null and void. Therefore, any practice of the Maoris if goes against the natural rights of men, must be declared illegal and would not be justified in any way.

Moreover, many jurists believe that law has a purpose. The immediate end of law is to secure social interests which means that the conflicting interests of the members should be weighed and evaluated, and the interests which can bring greater benefits with the least sacrifice of the members should be recognised and protected. Therefore, cannibalism must be prohibited keeping in mind the general interests of the people. However, during times of grave necessity, it might be justified to an extent, that greater number of persons would survive with the sacrifice of one. According to Lord Devlin, public morality is the basis of human society. And the function of any law is its protection. Therefore, the conducts that “arouse a widespread feeling of reprobation, a mixture of intolerance, indignation and disgust, deserves to be suppressed by legal coercion in the interests of the integrity f the society.”[18]This means that cannibalism as is considered to be a taboo in many societies should be prohibited in all forms through legal sanctions. According to the sociological school, morals are an intrinsic part of the ends pursued by law. Laws and morals must not interfere with each other. The brutalities committed during the Great Wars have forced people to turn back to morality and make law closer to human life as such, nullifying any practice that is against the human rights.

Now, if it is seen from the perspective of positive law, whether cannibalism is justified or not would be based on the laws of the land. If the superior sovereign authority puts forward a legal clause that cannibalism might be permitted in his land, then it would become a law and nobody would be able to alter this. This is in accordance with Austin’s theory that law is the command of a determinate superior human authority. Here the case of cannibalism in China being practiced during the TANG Dynasty would be valid, because the eating of the enemy’s heart and liver were seen to be official symbols of revenge. However if the sovereign doesn’t desire that cannibalism be promoted and passes a law that every person has a right to live and cannot harm another human, then cannibalism will not be defended in any way as it is against the desire of the sovereign. Moreover, according to St. Thomas Acquinas, a statute that serves the ruler’s private interest may not be a law.[19] Again if one believes in Kelsen’s Pure Theory of Law then to justify cannibalism it must be backed by superior norms that go on to support cannibalism. But with any revolution that is brought about by the people against the practice of cannibalism, although backed by a brand norm, would successfully stand against it.

Again, there are utilitarian arguments and Kantian arguments failed to demonstrate that cannibalism is morally wrong. Sometimes moral prohibition against cannibalism cannot be rationally justified even if there are other sentimental grounds for refraining from human flesh. [20] The first utilitarian argument is that one must regard the morality of cannibalism based on the harm done to the cannibalized. But in cases where the cannibalized is neither eaten alive or murdered in order to be eaten, the harm done is quite unclear. If one is dead, the rights that were granted because of one’s existence cease to exist. Therefore it means that no harm, legal or physical can be done to the dead. It cannot be followed that what happen to bodies after death can constitute harm to the deceased.

The second argument involves the harm that is done to those who care about the cannibalized. [21] Consumption of human flesh would cause undue distress to the family of cannibalized. This would be considered wrong. But based on this argument it would be morally wrong to eat a corpse if there were no living persons who had an interest in the preservation of that corpse. Here, the cannibalistic act of Aghori Sadhus found in India can be justified because they do not kill or murder any person but meditates and eats dead bodies that are found near the cremation grounds. It is their belief that if they accept what has been rejected by others, they are on their path of salvation. The third argument is that even if the corpse doesn’t have a family, all human beings should have an interest in the prevention of cannibalism because many belief that the society that permits the consumption of human flesh produces more unhappiness and one would not want to live in such a society. But this argument is countered by some defenders of cannibalism as being based on false empirical claim.

The consumption of another human treats the human being merely as a means for the satisfaction of desires and in doing so the dignity of each individual person is forgotten. Thus cannibalism violates the moral law. This is countered by the Kantian argument that a corpse is not a human being, but only flesh which cannot have dignity.

The case of Armin Meiwes of Germany

This case involves the consumption of the flesh of one person by another, with his consent and later killing him to consume the body parts. Armin Meiwes of Rotenburg, Germany had posted an online advertisement for a willing well-built person to be slaughtered and then consumed. To this, an engineer named Brandes has consented to this. Following this, they jointly attempted to eat Brandes’s severed penis. After considerable blood loss, Meiwes killed him and went on to eat a large amount of his flesh.[22] In 2005, a German court ordered his retrial and the questions that the court tried to answer were whether Brandes was legally capable of asking to be killed, given his mental capacity at that time and that he had taken a heavy dose of alcohol and pain killers.[23]

However, the court held that consent of Brandes was not admissible and Meiwes was convicted of murder. The rationale behind was that the defence of consent under the principle of “volenti non fit injuria” could not be invoked in all cases of violence to oneself. For eg., in the case of Mathew vs. Ollerton, the court held that the consent to assault and battery cannot be admitted as it was against peace.[24]Here, the harm caused to Brandes was serious harm. According to Blackstone, ” The cutting off, or disabling, or weakening a man’s hand or finger, or striking out his eye or foretooth, or depriving him of those parts, the loss of which in all animals abates their courage, are held to be mayhems. But the cutting off his ear, or nose, or the like, are not held to be mayhems at common law; because they do not weaken but only disfigure him”[25] The harm is said to be serious if it induces a substantial risk of death. In the case of Meiwes the act of cutting off the organ in order to consume it, was an indication of harm that could be fatal because of the substantial blood-loss caused to the victim. The rationale of the court for criminalisation of such consensual acts of harm was that “apparent consent was not truly voluntary and rational and, therefore, is invalid and also, that unless the consensual injurious act is prohibited, society will suffer significant harm”[26]The condition of Brandes being intoxicated before getting killed makes him incapable of giving a consent. Again, the consent was not rational but what about the question of his consent at the initial stage i.e., the consent to the advertisement. Here H.L.A Hart’s stand that “Choices may be made or consent given without adequate reflection or appreciation of the consequences; or in pursuit of merely transitory desires; or in various predicaments when the judgment is likely to be clouded; or under inner psychological compulsion; or under pressure by others of a kind too subtle to be susceptible of proof in a law court”. Therefore, the significance attached to consnet can be diminished. There might be situations where the person would not know what his actions would lead to. But, if it is seen to be inflicting any kind of serious bodily harm, it must be prohibited in any way. [27]Also, allowing an otherwise criminal act to go unpunished because of the victim’s consent would not only threaten the security of the society but also might tend to detract from the force of the moral principles underlying the criminal law[28] After being tested by a psychologist, it was reported that Meiwes could reoffend and still had the urge to cannibalise on young men was reason enough for the court to into consideration public safety. The question of consent in relation to social utility is also taken as a rationale by many courts.

Roscoe Pound’s theory of “social engineering” can be used as an argument against cannibalism. Roscoe Pound belonged to the sociological school of jurisprudence and he gave the theory of “maximising the satisfaction of all with the minimum sacrifice”.[29]According to him, the interests of the society are varied and conflicting. The task of law is to maintain a balance between these conflicting laws. The social interests which include the general welfare of the people must be taken into account and the individual interest must be suppressed if it comes in the way f social interest. However, sometimes, individual interest might take the place of social interest. The act of Meiwes and Brandes could set examples that would be against the social interest of general safety and policy. Therefore, for the cause of deterrence, the consents to such acts of harm have to be criminalised by the court.

Necessity as a defence of cannibalism

Although in most parts of the world, cannibalism is not a societal norm, it is resorted to in situations of extreme necessity. The survivors of the shipwrecks of the Essex in the 19th century are said to have engaged in cannibalism. They were not considered to be wrong because it was a case that involved ‘necro-cannibalism’ and not homicidal cannibalism. In English law, homicidal cannibalism is considered a crime. Here, in the case of R v. Dudley & Stephens, were two men found guilty of murder for killing and eating a cabin boy while adrift in sea in a life boat, set the precedent that necessity cannot be a defence to a charge of murder. In this case, the two accused were held guilty o felony and murder. The contention that it was at the time of utmost necessity that the act was committed. Moreover, the victim was in a state of coma. The judges while deciding this case, held that the defence of necessity as defined by Lord Hale, regarded only the “private necessity which justified, and alone justified, taking the life of another for the safe-guard of one’s own to be what is commonly called self-defence”.[30]Further it was also held that in this case, there was no excuse of necessity because the unquestioning, unresisting life should have been preserved. there was no justification for killing the weakest, the youngest, the most unresisting over the other grown men.[31]It was also held that though law and morality were not the same, yet “the absolute divorce of law from morality would be of fatal consequence; and such divorce would follow if the temptation to murder in this case were to be held by law an absolute defence of it”[32]Therefore, they were held guilty of murder and sentenced. Many instances of cannibalism which was out of necessity were recorded during World War II. But these acts were investigated in War Crime trials and often the soldiers were found guilty and prosecuted. Reports of cannibalism in North Korea emerged due to the famines of the 1990s. Same is the case with Somalia.

Cultural Relativism as a defence of cannibalism

Cultural relativism is a theory that promotes tolerance. Based on this, the cultural practices of the people belonging to different backgrounds are not criticised just because one doesn’t believe in it. It is a principle that an individual human’s beliefs and activities should be understood in terms of the individuals own culture. Cannibalism is a practice of many primitive tribes and is being practiced since thousands of years. Some tribes belief that ritual cannibalism of the recently deceased can be part of the coping mechanism or a way of guiding the souls of the dead into the bodies of living descendants, because the soul needs to be liberated from the body. This can be justified as primitive tribes’ belief in the supernatural powers and they always fear the unknown. As they are not educated they would not know about the alternatives to such practices and keep following it as a part of their tradition. The Aghoris also believe that their way of life would bring themselves closer to their god, Lord Shiva. Bodies that are disposed off without cremation are collected by them for their spiritual enlightenment. Shunning material goods is a part of their culture and they emphasise that the body is inconsequential. If one relates to their culture it can be understood that they also come from a background which promotes such irrational beliefs and therefore, for them cannibalism can be justified.

Conclusion

In the common world, when one utters the word cannibalism, it is often understood to be the consumption of human flesh by another human. It is considered to be a taboo and therefore, many hesitate to talk about it. The term cannibalism has been derived from the Island of Carib, of the Lesser Antilles. The people of this island have acquired a long standing reputation as cannibals following the recordings of their legends in the 17th century. Two of the most common forms of evidence generally regarded as being that of cannibalism, is unnatural scattering of human bones and the finding of them in a damaged condition.

Cannibalism has been well documented around the world, from Fiji to the Amazon Basin to the Congo to Māori New Zealand. Neanderthals are believed to have practiced cannibalism, and Neanderthals may have been eaten by anatomically modern humans. There have been multiple reports of cannibalism – both as legends and as acts of crime. A UN Human Rights report of 2007 declared that sexual atrocities against women go beyond rape and are also cannibalised.

Natural law theorist says that there exists a duty not to take human life even in the absence of a positive law. In this context, cannibalism is supposed to be prohibited and cannot be justified as according to natural law. According to positive school of law, it would be or would not be justified, based on the laws of the land and the command of the sovereign. there are utilitarian arguments and Kantian arguments which go on to demonstrate that cannibalism, in all instances, is not morally wrong. Cultural relativism, is also seen to promote the tolerance towards the practices of other tribes and societies, instead of out rightly rejecting them on the grounds that it is not justified, just because it is not a common practice in one’s own culture.

Therefore, for many, cannibalism is wrong. It cannot be justified in any way. The body is seen to be sacred and the sanctity of the body mandates that it is not to consumed as it would mean the loss of dignity of the body. But, on the other hand, respect for an entity is when the agent demands for the respect or does something in a particular manner for which it is respected. But, a corpse is not a living human being that could be respected. The flesh of a human being can be consumed just like the flesh of any other animal species. There is again, an argument that psychological disorders can lead to cannibalism. There are also, reports of cannibalism that is resorted to for deriving sexual pleasure. Thus, cannibalism as a practice to be justified, is a subjective question. For some, it is the mere violation of natural rights of man, while for some others it is just another ritual based on cultural and religious beliefs, that should be tolerated, if not supported, from the stand point of cultural relativism.

*Ruchira Baruah is a student of 3rd Year, (B.A.,L.L.B) from National Law University, Assam

[5] William Jennings, ” The Debate Over Kai Tangata (Maori Cannbalism): New Perspectives from the Correspondence of The Marists”, The Journal of the Polynesian Society, Vol.120, No.2 (June 2011), PP. 129-147 at P. 130

[24] Vera Bergelson, “The Right To Be Hurt Testing The Boundaries Of Consent”, Rutgers School of Law-Newark Working Papers Series Paper No: 01. availbale at www.porlockspensum.com, accessed on 8/12/15 at 18:14 hrs

[28] Vera Bergelson, “The Right To Be Hurt Testing The Boundaries Of Consent”, Rutgers School of Law-Newark Working Papers Series Paper No: 01availbale at www.porlockspensum.com, accessed on 8/12/15 at 18:14 hrs